Saraswathi Ammal vs Life Insurance Corporation of India

Veeraswami, J.—This petition is directed against the order of the Subordinate Judge of Salem permitting certain witnesses to be examined

on commission. It is common ground that except the witnesses at Vellore, the others reside beyond 200 miles from the court house. The

petitioner''s ground is that the learned Subordinate Judge was not right in issuing a commission for examining the witnesses at Vellore. It is said that

the order was made on a wrong conception of his powers under Order XVI Rule 19(a) of the Civil Procedure Code. In particular, the petitioner''s

attack is levelled against the observations of the Subordinate Judge:

The Vellore witnesses cannot be ordered to attend in person to give evidence in this court in View of Order XVI Rule 19(a) as they live beyond

this court''s jurisdiction.

Order XVI Rule 19 reads:

No one shall be ordered to attend in person to give evidence unless he resides:

(a) within the local limits of the court''s ordinary original jurisdiction; or

(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for

five-sixths of the distance between the place where he resides and the place where the court is situate) less than two hundred miles distance from

the court house.

Prima facie, reading the language of Clause (a) it may appear at first sight that unless the witnesses reside within the local limits of the court''s

ordinary original jurisdiction, they cannot be ordered to attend in person to give evidence. But this clause has to be read and understood in the light

of the following clause. That sub-clause makes it clear that even though the witnesses may reside without such limits, but within the distance

contemplated therein, the court can summon them to attend in person provided the conditions provided by the sub-clause are satisfied. The court,

in this case, was, therefore, competent to summon the witnesses residing at Vellore to attend personally and give evidence. It follows, therefore,

that the learned Sub-ordinate Judge took a too narrow view of the scope of Rule 19(a) of Order XVI.

Nevertheless, I do not think that any interference with the order for examining the Vellore witnesses on commission is called for. It is common

ground that all the witnesses at Vellore are medical men attending the hospitals at that place. Doubt-less, it is largely in the discretion of the court to

issue an order for examination of witnesses on commission. Circumstances may exist which may make it expedient or convenient from the public or

private standpoint to make an order for examination of a commission evidence. Having regard to the fact that the witnesses to be examined on

commission are medical men in a well-known hospital, though I do not agree with the learned Subordinate Judge on the view he took of the

relative provisions of law. I should decline to interfere with the exercise of his discretion in making the instant order for commission. This view of

mine is not to be understood as laying down a rule that wherever medical men are concerned, the court is bound to issue commission for examining

them. If there are justifying circumstances, the court may well direct such witnesses to attend court personally.

The petition is dismissed, but in the circumstances with no order as to costs.